Barratry: Old Word, Big Problem

In this episode, Josh and Aaron tackle the dark and often misunderstood topic of barratry — the illegal solicitation of clients that still plagues the legal world today. They unpack how this unethical practice harms victims, erodes trust in the profession, and why raising awareness is key to protecting consumers and restoring integrity in personal injury law.

 FVF Law is a well-credentialed, overwhelmingly 5-star reviewed personal injury law firm in Austin, TX. FVF strives to be the educational resource for the injured, available to guide those with questions about what comes next. It is FVF’s mission to ensure clients are prioritized and informed throughout the injury claim process, and to secure the best possible outcome. Josh Fogelman and Aaron Von Flatern founded FVF Law to offer a different kind of injury law firm, and a dignified alternative in the marketplace. They hope to show injured Texans that consulting a lawyer after an injury is a natural, and responsible thing to do.

Transcript

0:00:00.2 JF : Thank you for tuning into Summary Judgment, where Austin personal injury attorneys Josh Fogelman and Aaron von Flatern of FVF Law discuss the ins, outs, and in-betweens of personal injury cases.

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0:00:16.7 AF : Hey, Josh.

0:00:17.4 J: Oh, hey, Aaron.

0:00:18.2 A: Have you ever been to a blue comedy show?

0:00:21.0 J: What's a blue comedy show?

0:00:23.1 A: That's the show that the comedian invites the audience to go to sort of after the regular show because the material that they are planning is going to be so dark that they can't even really sell tickets to it because it's like by invite only. It's rated like beyond what anyone should have to listen to with their human ears.

0:00:45.7 J: Well, I've never been on that VIP list, unfortunately.

0:00:50.0 A: I raised this issue because I feel like we should warn our listeners we're about to get into some dark stuff.

0:00:55.5 J: Yeah, it's going to be dark.

0:00:58.3 A: So, I'll just throw the word out there. It's a bad word.

0:01:01.0 J: It's a terrible word. The worst word.

0:01:03.8 A: Barratry.

0:01:04.2 J: It's a bad word.

0:01:04.7 A: You ever met anyone named Barrett?

0:01:06.3 J: I actually have. Yes, nice guy.

0:01:11.5 A: You know.

0:01:10.9 J: Nice guy.

0:01:13.5 A: Is he? Actually, I've met some Barretts too. That's a hardworking, good name. And no slide to anyone named Barrett.

0:01:19.5 J: We're going to have to edit that out.

0:01:22.6 A: But barratry. So, let's talk about it. It's the oldest word in the world. Did you know that?

0:01:29.3 J: I'm not sure if that's true. It's probably not true, but it's an old word.

0:01:32.8 A: It sounds old, though.

0:01:33.8 J: It sounds real old. It definitely goes back to medieval times.

0:01:36.8 A: It's up there with like skullduggery.

0:01:39.1 J: Skullduggery, yeah.

0:01:40.0 A: Whatever that means.

0:01:40.8 J: Yeah, it means the thing.

0:01:42.6 A: Yeah. The thing that it means.

0:01:44.7 J: Yeah.

0:01:48.4 A: So, since everyone is just on the edge of their seat, what is barratry?

0:01:52.8 J: Yeah, barratry, it kind of has a broad definition and it's really important. And why we're talking about it, it's a really important term in our industry in particular for a lot of reasons that I want to get into, that we want to get into today. But for purposes of this podcast, barratry is basically referring to the illegal, the unlawful solicitation of business by people of clients. So, in other words, when you have someone who is violating the law in order to try to get somebody to become either their client, if they're a lawyer, to become their client, or there are actually people who are not lawyers who get paid to go out and solicit people and sometimes even pay money to people to sign a lawyer's contract to become the lawyer's client. And it's terrible and it's illegal and it's extraordinarily abusive and disruptive of the legal system.

0:02:56.4 A: Chasing ambulances.

0:02:57.5 J: It is ambulance chasing as that term was coined.

0:03:00.8 A: As it originally was coined. But currently, when we say ambulance chasing, I think people think of sort of clownish behavior, right?

0:03:11.1 J: Yes.

0:03:11.6 A: Like, oh, it's an ambulance chaser. In other words, it's like someone who has an advertisement that's really silly, that is in your face, and unironically is sort of yelling at the audience to hire them for their... Have you or a family member been injured and all that stuff, right?

0:03:29.3 J: Yeah, which is why when people jokingly refer to me or you as ambulance chasers when we meet them at parties and they ask us what our line of work is, and they think it's funny, it's really not funny because it's quite insulting to be called an ambulance chaser because it really suggests that you're doing something illegal for your own personal gain. But they don't know that.

0:03:55.1 A: They don't know.

0:03:55.8 J: They don't know that. [0:03:57.1] ____ grace.

0:03:56.6 A: They don't know that. At one point in time, people who were hired by lawyers or were lawyers themselves would literally stalk the injured and go into their hospital rooms and sneak behind the curtain while they're under anesthesia and have them sign paperwork to create cases.

0:04:18.1 J: They still do.

0:04:19.2 A: Yeah, bad stuff, bad, bad stuff. And so why is it on our mind now this is an ancient arcane problem that the law has dealt with, that our rules of professional responsibility deal with? Why are we talking about it today?

0:04:34.6 J: Yeah, I mean, it's been on our mind for a long time. It's been on our mind probably since we started our business for a variety of different reasons. We've seemed to be seeing a massive uptick of it for some reason as reported to us by our clients who seem a little bit nonchalant and dismissive about these spam phone calls, these unsolicited phone calls they're getting after they've been hurt by people who are trying to get them to sign contracts to be represented by lawyers that they never reached out to, don't know, have never identified themselves, have no relationship with whatsoever. So in kind of seeing this uptick, it's really come to top of mind in our business. And we value transparency and education that really relates to all aspects of personal injury law. And this seems to really be an important one because people are getting taken advantage of. And it's very problematic and it's unfair. And unfortunately, for the most part, it pretty much goes unpunished.

0:05:47.7 A: Yeah, I would say it's weirdly tolerated. And I mean, what does that say about the reputation of our profession that actual felonious behavior is being lumped in with just regular old spam calls? Because our clients are telling us that they're like, well after they've signed up with us through organic and legitimate means, and we're working their case, they're like, how do I get these calls to stop? And we're like, what calls? And they're like, it just the normal, like I'm getting spammed by all these lawyers that want me to hire them like, whoa, you should not... There's not even one of those calls that's even remotely acceptable under our laws. And so how and why is it happening?

0:06:31.5 J: Yeah, I think that there are people who have back channel access to things like crash reports. There are probably people who are paying en masse for access to things of that nature where they can get the identity of people who were involved in car crashes. People are... Historically, we call the people who are out there trying to solicit this business case runners. That's what we've called them historically in our industry. And case runners have a history of being extraordinarily creative in order to solicit unlawfully business, in order to solicit people and get them to sign contracts. Throughout our whole career, we've heard stories, and these aren't lore. This isn't lore. These are facts. Some of these cases have been criminally prosecuted and have become widely known in our industry as being based in truth. But people walking into hospital rooms, approaching a person who's been catastrophically harmed or the family of a person who's been catastrophically harmed with a suitcase full of cash and a lawyer's contract and handed them the cash in exchange for the contract being signed. And as a result, that case runner gets paid a chunk of whatever the lawyer is able to help this family recover.

0:08:04.4 J: And as with anything, where there is enough of an incentive, and financial incentives are a strong example of this, people will find a way to break the law for their own personal gain. And it just seems with access to dark web information of people's personal contact information, getting the identity of a person and having the opportunity to contact those people has just become easier and easier and easier. It wouldn't surprise me if there are people who are paying hackers or there are hackers who have broken into police databases who have access to personal identifying information about car crash victims before a report has even been completed. I don't know that to be true, but it certainly wouldn't surprise me.

0:09:01.6 A: Yeah, so this to me really encapsulates our whole modern world right now, which is that a lot of what's going wrong or is not quite right about the world is the result or the manifestation of a process that feels unstoppable. And I say that because as we talk about this in the old days, in comic book days, there's like good and evil, there's black and white, there's some bad actors and there's some good actors. And in the modern world, what you have is this interconnected global network of people that don't always even know what they're doing a task for that they're being paid. And so here we have seen this example where a legitimate law firm hires a famous and legitimate marketer to do normal listing directory type of things. That entity then hires, outsources some of that work to another contractor. And that contractor then outsources various pieces of that work to three or four other pieces. And one of those entities ends up fully cold calling people. And another of those entities' job is to fill out online contact forms and make them look real. Except they're not told that. They don't even speak English. They're oftentimes offshore, so the form that they're filling out, they're not even really sure why they're filling it out, what purpose it serves. And sure, there's some evildoers along this chain, but you can see how it gets very difficult to stop that kind of behavior.

0:10:48.3 J: Somewhere along the way, someone gets incentivized to break the rules. Even if the two original parties to that agreement, the law firm and the directory, have only the best intentions to be above board and market responsibly and ethically, somewhere along the way, the inappropriate incentive gets introduced and someone is going to take advantage of that. I mean, that's just the nature of humans, unfortunately.

0:11:19.8 A: And for people that are listening that might not understand how this world works, you might have a directory service who contracts to say look, if you hire us, people look at our website and they'll see you and they'll send you leads. So in other words, leads meaning somebody wants to be contacted. There's no such thing as a cold call under our law. So you're like, okay, well, yeah, if somebody asked for our services, they see us on your directory, they like our profile, and they want a contact from us, then yes, we would like that lead. And here's some small fee per lead. Okay, that's not our normal relationship, but that is one of the ways that law firms market. In that situation, it all looks above board, but no matter how small that per lead fee looks to you or I, if you take it over to... I don't want to pick on any one particular country, but a country that's average income is very, very, very, very, very low, and you're waiving like hundreds of dollars in front of somebody to say, if you can get someone on the phone, a warm body on the phone, this money is yours. And they don't ask questions, they don't know why they're even doing that work. And so the point is that in order to combat this, you can't just have like Johnny Law show up and start cleaning up as a new sheriff in town. You really have to educate the public on what is wrong with this scenario and how to respond to it.

0:12:51.6 J: Yeah, that's right. And here's the problem, right? People out there listening might be wondering, oh, come on. You guys are lawyers. This is happening to a bunch of lawyers. Certainly this is something that would be easily contained, but it's not. And the problem that we have is you're dealing with people oftentimes, not all the time. You have a lot of educated consumers, of course, but you... I mean, people of all walks of life get hurt. And it's just a matter of being in the wrong place at the wrong time. And a lot of these people are very vulnerable and they don't understand that what's happening is even illegal. There's nobody feeding them that information along the way. The person who has solicited them successfully and gotten them to sign a contract then holds their hand and represents them through the entire personal injury claims process, sometimes successfully, whether it's ethical or not, sometimes it's done successfully. And the person who has been solicited unlawfully doesn't even understand that what's happened to them was a violation of both criminal law and civil law. They don't even understand that it's their right to complain. And similarly, you've got a lot of people who, to your point earlier, just can't be bothered with the additional time and energy and resources it's going to take to potentially initiate a criminal complaint or file a lawsuit against the person who unlawfully solicited them when they're already dealing with this extraordinarily disruptive situation where they've been hurt and they're trying to recover, maybe they've lost their job.

0:14:47.9 J: And so in a lot of ways, it's this invisible crime, but the problem that you have with it is you have deprived the consumer, you have deprived the victim, who's not just a victim of a personal injury incident but also a victim of illegal solicitation, of the opportunity to make an informed decision. And as we've talked about oftentimes on this podcast, the disparity of knowledge, the difference in knowledge between most consumers, most personal injury victims and personal injury lawyers is so great that people oftentimes don't even have the opportunity to understand that the representation they have not even really chosen, that has been placed upon them by some illegal, unlawful actor, isn't that great.

0:15:47.3 A: So what's the disparity, I mean, that's one type of disparity. The other disparity is in the types of lawyers that you can potentially hire for a personal injury case, and I hate to say it, but like the difference between the worst personal injury lawyer and the best personal injury lawyer is a factor of what?

0:16:03.8 J: Absolutely.

0:16:06.1 A: What do you think the multiplier is?

0:16:08.2 J: Well, I can tell you this. I just had a conversation with our partner yesterday who just secured a multiple 10-figure outcome on a case. And he told me... This is last night, he told me he was at a party, a well-attended party by the who's who of the Austin legal world. And a defense lawyer came up to him at this party and said, hey, I heard about your multiple 10... I'm sorry, your multiple eight-figure recent recovery that you just had in a wrongful death case. And he said, I just... As a defense lawyer, I just defended the exact same case, same identical facts with equally deep pockets of the wrongdoers. I just settled that case for $60,000.

0:17:09.7 A: Wow.

0:17:10.5 J: So whereas one lawyer observed those facts as being worth $60,000, another lawyer in our organization...

0:17:19.0 A: [0:17:19.1] ____

0:17:21.2 J: Observed that case as being worth tens of millions of dollars. So those are the kind of economics that we're talking about in this world.

0:17:29.1 A: And so choosing the right lawyer is important. And being deprived of that choice by someone who takes advantage of the fact that you're under anesthesia or painkillers and also are under duress and maybe waves cash in front of your face so that you can pay your rent that month is a high crime. It is a high crime. It's worthy of prosecution. It's worthy of lawsuits. And it's absolutely worthy of calling the state bar in your state if you're not in Texas. The Texas State Bar is interested in this. They have been since the 1970s when the United States Supreme Court approved advertising. In the past, a lot of people who are listening to this might know it was illegal to advertise for law firms prior to 1977. The US Supreme Court said, hey, this is a freedom of speech issue. You're going to be able to advertise now. And people... Just this bad behavior seems to have gotten worse.

0:18:33.9 J: It sure does. And you kind of come to the question of, well, what can I do about it? And what... Not to be... You might ask, well, what's in it for me if the harm, if I'm an educated consumer and the spam calls that I'm getting are just noise, well, what's really the value in me spending this additional time picking this fight when I have ignored that call and been an educated consumer and chosen the lawyer that I wanted and I'm happy with my choice? Why should I really care if it didn't harm me? It's like, well, A, there are a lot of people who might not be as educated as you and might be much more vulnerable than you, and it's really your duty as a member of this community to try and do something to step up and protect those people. So morally, it's the right thing to do. But in addition to that, the law can reward you if you've been the victim of barratry, whether you engaged with that unlawful solicitation or you ignored that unlawful solicitation. The fact that the solicitation happened is the crime.

0:19:54.0 J: It is the violation of the law, and the law allows you to collect a pretty significant civil penalty, up to $10,000 civil penalty, if you are successful in bringing a barratry claim against one of these bad actors. So there are economic reasons to do it in addition to ethical and moral reasons to do it. And it's really something. If you're listening to this podcast and you're getting these phone calls or you've had something untoward happen to you that just didn't smell right, and someone reaching out to you that you didn't ask for, seeing if you want to hire a lawyer or sign up with them, then you really ought to consider contacting us or contacting the state bar. There are lawyers in the state that handle specifically barratry claims and file barratry lawsuits all the time. So there are resources available, and it's worth the call, and it's worth the fight.

0:20:54.1 A: Absolutely.

0:20:55.4 J: Well, thank you guys for listening. Appreciate your consideration here, and it's an important topic, and it's one that really needs to get more attention.

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